Appeal from the United States District Court for the District of Columbia, Civil Action No. 88-0764.

APPELLATE PANEL:

Edwards and Ruth B. Ginsburg, Circuit Judges, and Kaufman, Senior United States District Judge.* Opinion for the Court filed by Senior United States District Judge Kaufman.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KAUFMAN

This appeal raises the question whether the Federal Bureau of Prisons ("the Bureau") violated the First Amendment rights of plaintiffs-appellees, Silvia Baraldini and Susan Rosenberg, by placing them as inmates in the Bureau's highest security confinement institution for women. The District Court answered that question in the affirmative and granted injunctive relief to those two plaintiffs. Baraldini v. Meese, 691 F. Supp. 432 (D.D.C. 1988). We disagree and reverse. *fn1 I.

In October 1986, the Bureau opened the Female High Security Unit within the Federal Correctional Institution at Lexington, Kentucky ("the Unit"). Prior to that time, the Bureau did not have a high security place of confinement for women. On September 2, 1986, a high official of the Bureau wrote in an internal Bureau memorandum:

Candidates for placement in this unit are those females whose confinement raises a serious threat of external assault for the purpose of aiding the offender's escape. Other females who have serious histories of assaultive, escape-prone or disruptive activity may be considered on a space available basis. . . . Consideration for transfer from the unit should be given when the original factors for placement in the unit no longer apply and when placement in a less secure facility becomes appropriate.

Prior to the entry of the injunction by the District Court in July 1988, seven women, including Baraldini, Brown and Rosenberg, had been assigned to the Unit. As of March 1, 1988, three weeks before this action was instituted, those three women plus two others, or a total of five, were so confined.

Silvia Baraldini received a forty-year prison sentence after her 1984 conviction for racketeering, conspiracy and armed robbery. *fn2 Prior to her transfer to the Unit in January 1987, Baraldini was confined in the general population of non-maximum security institutions without any unusual security, behavioral or other similar problems. Her January 1987 transfer papers stated:

Ms. Baraldini is a member of the May 19th Communist Party which is sympathetic to other radical groups including the New African Freedom Front and the FALN. She participated in the successful 1978 escape of Jo Anne Chesamire [sic] from the New Jersey State Women's Prison. Members of her group have participated in numerous armed robberies where police officers were wounded or killed.

Id. at 436. In addition, Baraldini's transfer papers noted her association with the "Family" -- "a revolutionary organization whose members advocate the overthrow of the U.S. government through violent means." Id. (page references omitted).

Susan Rosenberg was sentenced in 1985 to fifty-eight years for conspiracy to possess unregistered firearms, unlawful use of false identification documents and possession of unregistered destructive devices. One of the first to be assigned, Rosenberg was sent to the Unit in October 1986. Before that transfer, the record contains no suggestion that Rosenberg presented any particular security, behavioral or other similar problems after she was sentenced in 1985. It was noted in the Bureau document requesting her transfer that

Rosenberg has been associated with the FALN, Black Liberation Army, and other terrorist groups. She also was thought to have been involved in an 1981 Brinks Armed Car Robbery and has previously been linked to the Joanne Chesimard escape in 1979. She also has threatened in open court to take her armed revolution behind prison walls. For the above reasons, we are referring her to a maximum security institution.

Id. After Rosenberg was sentenced, the sentencing judge, in a letter to the Director of the Bureau, reviewed the in-court statements of Rosenberg and a co-defendant, and stated that "the defendants exhibited no remorse. To the contrary, they exhorted their followers who were present in court to carry on the 'armed revolution.'" Rosenberg v. Meese, 622 F. Supp. 1451, 1464 n. 22 (S.D.N.Y. 1985) (quoting from a May 21, 1985 letter of the sentencing judge, Frederick B. Lacey, United States District Judge for the District of New Jersey, to the then Bureau Director, Norman A. ...

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